New PFAS Designations: Information You Need

In a recent ERIS webinar, industry experts shared their unique perspectives on the implications of the new PFAS designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for all stakeholders involved at a site where PFAS contaminants are present or likely present. The panel's conversation covered technical, legal, and insurance perspectives now that the U.S. EPA's Final Rule listing PFOA and PFOS as hazardous substances under CERCLA became effective July 8, 2024.

Key Takeaways

1. An ASTM E1527-compliant Phase I Environmental Site Assessment must now consider whether the presence, or likely presence of PFOA and PFOS exists to obtain liability exemption.

2. While the ruling only recently went into effect, Superfund liability is retroactive. A Potentially Responsible Party (PRP) can be held liable for PFOA and PFOS releases - including those that occurred before the Final Rule was issued.

3. EPA can order investigations and cleanups of PFOA and PFOS and recover such costs from PRPs. However, EPA intends to focus on entities who "significantly contributed" to the release of PFAS contamination into the environment.

4. Industrial properties are at higher risk. These include PFAS manufacturers, onsite Aqueous Film Forming Foam (AFFF) use, past fire responses where AFFF was used, landfills/waste disposal, and wastewater treatment plants. NAIC codes can help identify sites and adjoining sites most at risk.

5. Other PFAS compounds may still be considered a business environmental risk. While PFOA and PFOA are currently the only two PFAS chemicals added to CERCLA, nine additional PFAS compounds may be included under CERCLA in the future.

6. Environmental Insurance Considerations. Currently, three types of environmental insurance policies can be considered to mitigate liability risk for different scenarios. Policies covering PFAS may be harder to obtain in the future, but some older policies may not have PFAS exemptions. Environmental professionals should have Contractors Pollution Liability, especially if they are moving and/or remediating PFAS contaminants.

Since the update to CERCLA regarding PFOA and PFAS is new, a shift in litigation is expected to pick up quickly. It is important to stay abreast of new changes and policies to protect yourself and your clients.